In the previous chapters we have searched in vain for an argument that would support a human right of freedom of expression.

Although there may be a case for a presumption in favor of liberty of action - a case that we did not seek to establish - such a presumption, should it exist, is both far too broad in scope and far too weak to support a recognizable human right of freedom of expression.

A more robust liberty, one worthy of being called a human right, that is at the same time restricted to expression, lacks any theoretical grounding. In Chapter Seven we saw that candidate consequentialist and deontological theo­ries for a special right of freedom of expression are inadequate to the task. And in Chapter Eight, we saw the source of the problem: Evaluative neutrality is the hallmark of freedom of expression, but no moral theory can support evaluative neutrality without generating a paradox. Any moral theory will deem certain states of affairs to be desirable and demanding of legal promotion, and certain interests to be demanding of legal protection from acts that threaten those inter­ests. But both the media of expression and the messages conveyed may cause undesirable states of affairs and threaten protectable interests (per the moral theory in question); and conversely, suppression of expression by reference to its content (Track One) or its media (Track Two) may cause desirable states of affairs and safeguard protectable interests (per that moral theory). There­fore, government cannot permit the harmful expression without contravening the moral theory, which means, in turn, that the moral theory cannot demand protection of the harmful expression without generating a paradox. It must, instead, demand suppression of the harmful expression and permit only that expression that is consistent with the goals of the theory.

Where does that leave us with respect to freedom of expression? Surely it leaves us with something less than a human right of freedom of expression. But it does not leave us without more limited arguments for circumscribed domains of freedom of expression. Those arguments will likely have an indirect- consequentialist structure. That is, they will contend that content-neutrality within the circumscribed domain will lead to better consequences (however determined) than having government restrict expression in that domain to those specific tokens of expression it thinks likely to produce good consequences or unlikely to produce bad ones. Moreover, such arguments are likely to be time and place specific rather than universal. That is, the amount and types of freedom of expression that produce good consequences will vary with the form of government, the degree of political stability, the level of wealth, the state of technology, the general level of education, the culture, the structure of the news media and other media of expression and communication, and numerous other factors. The expression that the United States should permit in 2005 will differ from the expression that Uganda should permit, or even perhaps that Canada should permit. There is no reason to think that the indirect-consequentialist case for domains of freedom of expression will be impervious to differences of governmental form, technology, wealth, and so on, and thus impervious to time and place.

There are, of course, many things to be said on behalf of many types of expression, although the virtues of expression will necessarily vary with the more general normative theory by which outcomes are ultimately evaluated. If that theory supports a democratic form of government, it will perforce support that degree of freedom of expression required for conveying the information without which that form of government could not exist.

Aside from its connection with democracy, some degree of freedom of ex­pression will undoubtedly contribute to the realization of other things that we value positively. Thus, some degree of freedom of expression promotes knowl­edge that is useful to us in our roles as consumers or producers in the market­place. Some degree of freedom of expression contributes to a flourishing artistic life (again, as either a producer or a consumer). Some degree of freedom of expression is necessary for scientific and technological progress. Most impor­tantly, some degree of freedom of expression contributes to the knowledge we require to function as responsible moral agents. And there are numerous other goods - and also, of course, “bads” - that some degree of freedom of expression promotes instrumentally or constitutively.^[360]

In the absence of a human right of freedom of expression, we have no choice but to engage in quite speculative and hunch-driven predictions about whether some degree of freedom of expression will produce good results that, in terms of whatever normative theory we hold, will outweigh the bad results it produces. I should emphasize that by asking whether some degree of freedom of expression will produce good results on balance, I am not asking whether any particular token of expression will produce such results. Ajurisprudence of asking whether any particular token of expression will be on balance beneficial in terms of some background normative theory is not a jurisprudence of freedom of expression because it cannot distinguish its approach to tokens of expression from its approach to act-tokens generally. If an act-token produces good results on balance (and contravenes no moral side-constraints), it should be permissible (or mandated) regardless of whether it is an act of expression or a token of some other act type. Only if some set of tokens of expression is assessed in terms of its consequences as a set and not token by token do we have a form of freedom of expression. Case by case balancing of the costs and benefits of particular expressive acts is inconsistent with freedom of expression rightly so-called.^[361]

With these thoughts in mind, let us revisit the major types of government interferences with freedom of expression and see what can be said about them now that we have jettisoned the search for a general human right.